Fogarty
Fogarty v. Superior Court
Opinion
Lead Opinion
Caldecott, J.
The issue presented by this cause is whether the statute of limitations in an action for damages for malpractice, filed by an incompetent by and through a guardian ad litem, is governed by Code of Civil Procedure section 340.5, or Code of Civil Procedure section 352.
Thomas J. Fogarty, M.D., Wally Buch, M.D., and Robert F. Yario, M.D., filed this petition seeking a writ of mandate to compel respondent court to vacate its prior order overruling a demurrer and enter its order sustaining the demurrer without leave to amend.
In the underlying action, real party in interest James E. Flanagan, an incompetent person by and through his guardian ad litem, filed a complaint on July 7, 1980, for damages for medical malpractice. The complaint alleged that petitioners treated Flanagan for a heart condition between May 22, 1974, and July 1, 1974, but did so negligently, thereby causing him permanent brain damage. 1 The complaint further *319 alleges that at all times herein mentioned, plaintiff James E. Flanagan was, and still remains, an incompetent person. The order appointing the guardian ad litem was filed January 30, 1975.
On October 3, 1980, petitioners filed a demurrer to the…
Opinion
Katz & McIntosh, Richard L. Katz and Craig G. McIntosh for Real Party In Interest.
OPINION
CALDECOTT, P.J.
The issue presented by this cause is whether the statute of limitations in an action for damages for malpractice, filed by an incompetent by and through a guardian ad litem, is governed by Code of Civil Procedure section 340.5, or Code of Civil Procedure section 352.
Thomas J. Fogarty, M.D., Wally Buch, M.D., and Robert F. Yario, M.D., filed this petition seeking a writ of mandate to compel respondent court to vacate its prior order overruling a demurrer and enter its order sustaining the demurrer without leave to amend.
In the underlying action, real party in interest James E. Flanagan, an incompetent person by and through his guardian ad litem, filed a complaint on July 7, 1980, for damages for medical malpractice. The complaint alleged that petitioners treated Flanagan for a heart condition between May 22, 1974, and July 1, 1974, but did so negligently, thereby causing him permanent brain damage. [1] The complaint further alleges that at all times herein mentioned, plaintiff James E. Flanagan was, and still remains, an incompetent person. The order appointing the…
Concurring Opinion
Poche, J.
I concur fully in the judgment and reasoning of my colleagues.
For purposes of emphasis I add that had the Legislature in amending Code of Civil Procedure section 340.5 meant to exclude incompetent persons from the ticking of the three-year limitations clock imposed by that section it would have been a simple matter to do so. That draft-persons know how to so exempt such plaintiffs is demonstrated in the very next section, Code of Civil Procedure section 340.6, relating to actions against attorneys for wrongful acts or omissions. Section 340.6 uses the same format as used in section 340.5 (“In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time .. . ”) but then excepts the time “The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.”
Apparently then the Legislature said what it meant and meant what it said in both sections 340.5 and 340.6 when it used the words “In no event.. .. ” What is equally apparent is that it meant to make it easier for insane persons to sue their attorneys for malpractice than for these same insane persons to srue…